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The Most Important Thing You Can Bring to Court
After nearly three years as an administrative law judge, I feel comfortable opining that an advocate’s credibility is the most important thing that he, she, or they can bring to court. Credibility strongly influences the context in which judges assess legal arguments. Credibility also informs the degree to which an opposing party may rethink certain positions relative to the assurances, threats, or predictions that an attorney might make in a particular case. In all, credibility is a powerful indicator of believability that may persuade an opponent or a decision-maker to apply the law to the facts in the manner you propose.
And yet, on an almost daily basis, I see instances in which attorneys miss critical opportunities to solidify and enhance their credibility when appearing in contested proceedings. While some of these lapses are overt (such as missing court altogether), others are more subtle and may lead to a gradual diminution of credibility over the life of a case. An attorney whose credibility has suffered over time invariably enters trial at a disadvantage and may not even realize that authenticity and trustworthiness have eroded due to minor or unobtrusive gaffes in the earlier phases of a lawsuit.
In light of this concern, I thought it might be beneficial to litigators (and others) to identify several of the most common ways in which attorneys lose credibility during court appearances. While this list is certainly not exhaustive (and may reflect a bias towards the civil rights work that I currently perform), I suspect that many of these observations would be confirmed by other jurists regardless of the area of law in which they concentrate. I also imagine that the advice offered below is germane to just about any adjudicative forum (although my colleagues in the state and federal judiciary will need to tell me if I have missed the mark).
With those disclaimers offered, the following are the primary ways in which I believe attorneys can avoid losing credibility when appearing before a finder-of-fact:
Talk to the Opposing Side Before Coming to Court
Few actions demonstrate a greater degree of assiduousness than contacting your opponent to discuss a case before coming to court. Such dialogue saves substantial time and effort for the assigned judge if the parties are already agreed upon a path forward. Barring the occasional overreach, I rarely second-guess attorneys regarding the scheduling in their case if they have shown me that they are sophisticated and experienced enough to have contacted each other to discuss these issues in advance. While the parties need not agree on everything as the result of their meet-and-confer, I am more than happy to resolve any remaining disagreements if the attorneys have demonstrated that they are able to address some number of contested matters on their own. In my view, opposing lawyers who willingly communicate with each other in advance of live hearings are truly the consummate professionals in the room.
Conversely, there is almost nothing more frustrating than an attorney who raises an issue in writing without indicating whether the subject was preemptively discussed with opposing counsel. In such scenarios, I am left to guess whether a particular motion will be contested, meaning that my initial question to counsel during any subsequent motion hearing will likely be whether a live proceeding was even required in the first instance. An equally frustrating sequence plays out when a party makes an oral motion in court, only to reveal that no discussion was held on this relief in advance. In these situations, the moving party inevitably suffers an immediate and sizable blow to credibility, largely because communication with opposing counsel will almost always truncate the number of contested issues that need to be resolved by the court.
Familiarize Yourself with the Facts of Your Case
Ordinarily, when I meet with attorneys at an initial status hearing, the only documents I have before me are the complaint and the answer. But while I spend significant time familiarizing myself with those pleadings, I consistently have questions about a case that is not readily discernible from the controlling allegations. In most instances, my questions are tied to logistical concerns that forecast the size and scope of the workload needed to complete a particular matter (such as the number of witnesses that may need to be deposed during discovery).
Credibility wanes, however, when attorneys do not have the answers to underlying questions that should already be apparent from the investigation that was required to draft the complaint or the answer. For example, in a discrimination lawsuit, if a member of a protected class is alleging that other employees who violated “Policy X” were not terminated (whereas the protected plaintiff was), counsel for both parties should have at least some concept of who else was impacted by “Policy X” and whether any of those employees enjoyed the same protected status as the plaintiff. These are core facts in any discrimination lawsuit that will assist the assigned judge to predict the range of issues that may arise during discovery (or thereafter). Relaying them to the court with confidence and familiarity is an excellent way to demonstrate that YOU are the advocate on whom the finder-of-fact should rely when a debate or disagreement arises regarding the available evidence.
Request Extensions Promptly
If you foresee difficulty complying with a court-ordered deadline, request any extension far enough in advance to allow the assigned judge to meaningfully assess the need for an extension. In civil cases, deadlines directed by courts typically afford parties several weeks (if not multiple months) to comply with the timing obligations imposed on them. Nevertheless, with frightening regularity, I will receive a request for an extension on the date that a pleading is due, with the moving-attorney believing that a de facto extension has somehow been achieved merely by placing the motion for extension on file before the pleading deadline has passed (notwithstanding the fact that I will not have the opportunity to rule on the request for extension before the day ends). Few things are as detrimental to an attorney’s credibility as missing a deadline, particularly where an attorney mistakenly believes that an eleventh-hour request for an extension has technically vitiated the deficiency of not submitting the original pleading on time.
To be sure, emergency circumstances can (and sometimes do) arise. However, at least in my experience, parties rarely cite “emergency circumstances” as the rationale for their requests to continue applicable deadlines. Most often, attorneys advise that their work in “other matters” has hindered their ability to submit pleadings in a timely manner. This excuse is unlikely to hold sway with most judges—who are among the busiest of attorneys when it comes to managing several hundred matters at the same time. In such scenarios, a judge may tell you that if he, she, or they can effectively manage their time, you can as well.
To avoid placing your credibility at risk, request any extension early enough to give the assigned judge sufficient time to properly consider your request. In so doing, you will be viewed by the court as both an effective communicator and a diligent advocate who is attentively managing your side of the case.
Take Responsibility for Mistakes
Rare is the attorney who proclaims “the buck stops here” in the wake of tactical or administrative errors. Typically, a lawyer who has missed a pleading deadline or otherwise run afoul of a court order submits an apologetic motion seeking to correct whatever mistake has been made. Yet rather than own that mistake, the majority of corrective motions that I receive identify process failures that seem to imply that the error in question was not really the attorney’s fault.
For example, I routinely receive explanatory motions advising that a pleading deadline was missed because a new or inexperienced paralegal forgot to calendar the due date for a particular filing. In my view, nothing is more ruinous to an attorney’s credibility than attempting to ascribe fault to a subordinate staff member. Indeed, in my opinion, a lawyer’s effort to assign culpability to junior associates, paralegals, or assistants is tantamount to Richard Nixon’s famous concession that he would “accept the responsibility, but not the blame.” As the lead lawyer in a case, you are responsible for everything that happens—from an improbable victory to an exasperating error. Both are yours to own, although how you do so will largely determine how the assigned fact-finder assesses your credibility as an advocate.
If you make a mistake, own it, and ask to correct it. Like you, the judge in your case is a human being who makes mistakes all the time. If you accept the blame for the things that go wrong on your watch (even if those errors might not be your fault), the court is going to perceive you as both honorable and fallible, which are qualities that are naturally associated with heightened credibility. “No one is perfect,” as the old expression goes. And, in Illinois, the mandate from our Supreme Court is to decide cases on their merits, not on technicalities—so there are likely few mistakes that a judge is not going to let you correct where your credibility renders you worthy of the opportunity to do so.
Treat Self-Represented Litigants with Courtesy and Respect
Self-represented litigants (or “SRLs”) create unique challenges for the legal system. Often, attorneys become frustrated when litigating cases against SRLs, either because an SRL has filed a non-meritorious motion or because an SRL has failed to take an action required by local practice. In these scenarios, attorneys frequently move to dismiss the lawsuits brought by SRLs, many times on procedural or technical grounds. The rationale underlying such motions is the idea that Illinois law requires SRLs to be evaluated by the same standards that apply to licensed attorneys.
But as mentioned above, the Illinois courts operate under a general mandate to decide cases on their merits, not on technicalities. For this reason, it is unlikely that many judges will dismiss the claims of an SRL based merely on technical violations of applicable rules. A good example of this principle is a recent case I had in which defense counsel moved to dismiss an SRL’s lawsuit on three different occasions because the SRL had misquoted verification language taken from the Illinois Code of Civil Procedure. Such repetitive and aggressive litigation tactics were not enhancing the credibility of defense counsel, who did not seem to understand that I was not going to dismiss the SRL’s case on this ground. E-mails sent to the SRL by defense counsel were also hostile, threatening, and generally condescending.
Quite the opposite occurred in a case I had not long after—where an SRL was neglecting to answer discovery or appear at scheduled status hearings. The defense counsel in that matter clearly wanted to win her case on the merits. She sent courteous reminder messages to the SRL the week before discovery responses were due, followed by polite e-mails seeking a meet-and-confer when discovery responses were not tendered by the SRL in a timely manner. Even after all of those messages were ignored, defense counsel called the SRL’s voicemail and reminded the SRL of the date and time of an approaching hearing that was scheduled to discuss the outstanding discovery responses. When the SRL failed to attend that hearing, I had little choice but to dismiss the case for want of prosecution, which I did because I was persuaded that defense counsel had done everything she could to focus on the merits of the action, rather than capitalize on the power imbalance between the attorney and the SRL.
The takeaway is that courteousness and professionalism towards an SRL are compelling indicators of credibility and may help you to earn the results you hope to achieve in your case without becoming mired in the procedural disputes that often arise while litigating matters against SRLs.
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To summarize, your credibility is the most important thing you can bring with you to court. Your credibility impacts not only how the judge views your arguments, but the degree to which opposing counsel may concede certain positions based on the representations you make during a particular case.
Credibility can suffer as the result of poor lawyering, but it can also be enhanced through diligence, expertise, honesty, professionalism, and courtesy. Where you espouse these virtues in your appearances before judicial and quasi-judicial decision-makers, you are likely to find that you will receive the benefit of many “close” calls where the fact-finder believes that you are the most credible advocate in the proceeding.
Brian Weinthal is the Chief Administrative Law Judge of the Illinois Human Rights Commission. In this role, he serves as the principal fact-finder and decision-maker in cases of purported civil rights violations that are filed under the Illinois Human Rights Act. He also supervises the six other administrative law judges who work for the Illinois Human Rights Commission and assigns cases to them as new complaints are filed before the agency. At any given time, Brian and his bench are responsible for hundreds of pending lawsuits arising in the areas of employment, education, public accommodation, access to credit, and transactional real estate.